A recent judgment of the Supreme Court (SC) bringing the Chief Justice of India into the process of selecting members and the chief of the Election Commission of India (ECI) has once again triggered a debate about the role of the judiciary and the principle of separation of powers. Although this is a temporary arrangement until Parliament passes a law to regulate such a selection, the idea of judges participating in an administrative process on which they might later have to adjudicate is troubling.
The SC had already turned itself into a unique institution in the annals of democracy that appoints its own judges. It does this through an internal committee of judges it designates as the collegium, which is not accountable to anyone. There exists no other comparable constitutional body anywhere on earth in any modern democratic nation. This aberration of democratic principles was not always the case, and came to be only after four decades of Independence, through a series of SC judgments overturning the constitutional provision for the executive to make these appointments in consultation with CJI and two seniormost judges of the court. That had been a pushback against the overt bulldozing of established norms by Prime Minister Indira Gandhi, leading to resignations in the higher judiciary. It was also a consequence of the Emergency, during which democracy was rescinded by the suspension of constitutional rights. The collegium system was then seen by some as a way to protect the judiciary’s independence in the face of the overt pressures it faced from the then government.
But decades later, the judiciary shows no sign of relenting on its unique and unparalleled grip over judicial appointments. Indeed, this new judgment is another step in that same direction, of appropriating unto itself a role that is not viewed as being within the realm of the judiciary in virtually any other democracy. While the legitimately strong role that our Constitution provides for the judiciary includes adjudicating on such important matters, it certainly never envisaged the scope for it to take an administrative role in constitutional appointments.
The ECI judgment is not based on any credible allegation of bias or wrongdoing in its functioning or selection of commissioners. Rather, SC has derived the need for change from the clause of the Constitution which says that appointments to ECI shall be made by the President, ie the executive, “subject to any law made in that behalf by Parliament.” Of course, this would normally be understood as not that a law is required to be passed by Parliament, but that this privilege of the executive would be subject to any law passed by Parliament, should it decide to pass one.
This new judgment relies, at least implicitly, on another principle of democracy, that of checks and balances. Thus, for instance, the United Kingdom (UK) earlier this century decided to reform its system of appointing judges. Moving away from their traditional system of the government appointing judges — the norm in most democracies — in 2005 the British created their Judicial Appointments Commission (JAC).
The composition of the UK’s JAC is telling. Only three of its 15 members are judges, the others being eminent personalities from academia, business, charities and so on, with the government playing a key role in choosing them. India tried emulating a similar transition a decade ago with the National Judicial Appointments Commission (NJAC). NJAC was that rare Indian legislation that was passed unanimously in Parliament. And in a concession to the judiciary’s keenness to keep a grip on appointing judges, half of its six members were to be SC judges, with two others being a jurist and an eminent lawyer. In other words, it was stacked in favour of judicial and legal sentiments, unlike UK-JAC. Moreover, despite ending the unquestionable absolutism of the collegium, its composition let SC retain an effective veto over judicial appointments. Yet, even that little bit of check did not pass muster with SC, which scuppered NJAC.
The debate about judicial overreach in India has been long-running, but now, another equally important aspect is beginning to be discussed, that of consistency in principles. Surely the principle of checks and balances among the different pillars of the Constitution cannot be seen with the same idealism if one of those pillars exempts itself from it.
There are attempts by some in the media, politics and elsewhere to create an enabling narrative to justify chipping away at the government’s authority. This is not some kind of libertarian group that seeks to do that with any government, but individuals and organisations with vested interests that have been severely disrupted by this government.
That narrative is flawed. It rests not on evidence that the executive is overstepping its powers, but on an us-versus-them attitude. For instance, complaints of alleged institutional capture are based not on the credentials of some government appointees to institutions, but because they share cultural and ideological camaraderie with the party in government. As if the earlier decades of appointees, many of them hard-core leftists, shared no affinity with the parties of these critics’ choice.
These debates will not die down until the solutions have a sense of fairness and proportion, and are based on principles rather than preferences.
Baijayant “Jay” Panda is national vice-president, BJP
The views expressed are personal
